' SPED HAMID ALI SHAH, J.---Mr. Munawar-ul-Islam, Advocate for the applicant in C.M.No,29-B-2008 has contended that property bearing No, SXXA-10/A-II-H, Gulberg-II, Lahore, measuring 9 canals and 16 Marlas was purchased on 8-4-1967, by Malik Anwar Aziz, Malik Farooq Aziz, Malik Jehangir Aziz, Malik Ilyas Aziz, Malik Humayun Aziz, Malik Khalid Aziz and Malik Karim Aziz i,e, the sons of Malik Abdul Aziz. The property was never mortgaged with the decree-holder Bank to secure the loan. It was transferred to Malik Khalid Aziz, Malik Anwar Aziz and Najma Khalid Aziz, through the decree of the Court of competent jurisdiction, on 4-12-1978. According to the terms of the decree, the property was divided into three parts/portions. Portion-A fell to the share and ownership of Malik Khalid Aziz, while Portion-B to Malik Anwar Aziz and Portion-C to Malik Kazim Aziz and others. Late Kazim Aziz Malik is not a judgment-debtor in the proceedings. Portion-B, falls in the ownership of Anwar Aziz Malik, who orally gifted it to Attique Anwar Malik (his son).
2. It is asserted in the application and learned counsel has vehemently contended that gift was made orally, earlier in time and the same was acknowledged, through document dated 30-6-1980.
Malik Anwar Aziz, a judgment-debtor in these proceedings, ever since the said gift, has parted with the possession of the property and severed of his link with it. The property can neither be attached nor sold for the execution of the decree. He went on to argue that at the time, when the property was gifted orally to the donee, there was no loan and the property was free of any encumbrance.
While placing reliance upon the case of Alflah Bank Limited v. Najma. Saeed 2005 CLD 375 it was contended that when the question of validity or otherwise of the gift is raised, the same cannot be decided, unless an issue is framed to that effect and evidence is recorded. This, being a factual controversy, cannot be resolved summarily. He added that an oral gift is a valid gift and it cannot be declared invalid, merely because of its non-registration. He supported this contention by referring to the cases reported as Shehryar Ali Tippu and 3 others v. Messrs Decora Furnisher PLD 1985 Kar. 47 and Safeer Ahmad alias Muhammad Shafique v. Abdul Rashid and another 1992 CLC 1896. Learned counsel contended that if the essentials of a valid gift exist, the gift cannot be invalidated merely it is not reduced into writing or it is an unregistered instrument. To further support his contention that a written instrument of gift, requires no registration, he placed reliance on the cases of Abdul Ghaffar and 6 others v. Ghulam Jahan and 5 others PLD 1975 Pesh. 12 and Moulvi Abdullah and others v. Abdul Aziz and others 1987 SCM R 1403. He went on to argue that relevant fact for consideration is adherence to the essentials of a valid gift, rather than registration of an instrument of gift. Learned counsel summed up his arguments with the contention that the proviso has been added through amendment to section 49 of the Registration Act, 1908. The Court can look into the existence of a transaction according to above proviso, although the instrument, which is not registered, may not confer title upon a party. He in support of his contentions, has placed reliance on the cases of Anwar Sultana and others v. Pakistan Cooperative Housing Ltd. PLD 1964 W.P. Kar. 116 and Ghulam Sakina v. Umar Bakhsh and others PLD 1964 SC 456.
3. Sardar Qasim Ahmad Ali, Advocate for the applicant in C.M. No,27-B of 2008 contended that judgment-debtor No,4 Hassan Khalid Malik, who is son of Malik Khalid Aziz, original owner of Portion-A of the property, became owner of the half of the portion of the property (measuring 3 Kanals and 7 Marlas) by virtue of sale-deed dated 16-6-1979, judgment-debtor No,4 is neither a mortgagor nor a guarantor to the loan and his property, as such, is not available for attachment or for the satisfaction of the decree. He further argued that the mother of judgment-debtor No,4, who was defendant No,1, breathed her last and the applicant (judgment-debtor No,4) was impleaded being legal heir of the deceased defendant. The loan was not availed by the deceased and thus her legal heirs/survivors, are not liable for the satisfaction of the decree.
4. Sardar Qasim Ahmad Ali, Advocate, also represents the applicants in C.M. No,24-B of 2008 and C.M. No,25-B of 2008. He submitted his arguments in support of these applications as well. He contended that originally, the suit was filed against the mother of the applicant (Mrs. Najma Khalid Aziz), statedly, on the basis of personal guarantee. He submitted that the applicants have inherited half of the portion-A, of the property, from their deceased mother along with their brother Hassan Khalid Malik. They, being legal heirs/daughters of the deceased, are entitled to the half of the property (Portion-A), which has not, as yet, been transferred to their name, although it has devolved upon them by virtue of inheritance. It was further contended that Najma Khalid Malik never executed any document in favour of the decree-holder Bank and her property is not liable to be sold for the satisfaction of the decree. In his alternate arguments, he submitted that the decree- holder Bank settled the matter and transferred the loan along with liabilities of the project to Dr. Malik Muhammad Arshad Khan and, as a result of that settlement, the judgment-debtors stood absolved of other responsibilities, if any. Having referred to letter dated 8-2-1996, which shows that the decree-holder Bank accepted the said proposals and the matter, regarding transfer of the liabilities, had attained finality. He further contended that in the winding up proceedings, project was sold and the sale proceeds were adjusted towards the liabilities of judgment-debtor No,1 i,e, the principal borrower to the tune of Rs.2 crore and 60 lacs. No statement of account is placed on record to show the said adjustment. The execution application as such, cannot proceed. Learned counsel then contended that in the course of execution of a decree, the Court can proceed behind the decree and determine the valuable rights of the parties to impart complete justice. Learned counsel supported this contention by referring to the case of Irshad Bibi v. Muslim Commercial Bank through Manager and 3 others 2003 CLD 46. He further submitted that the Court can probe into the matter and examine the veracity, legality and genuineness of the documents. Learned counsel, in support of his contention, relied upon the case of Muhammad Saleem v. Allied Bank of Pakistan 2003 CLD 280.
5. Learned counsel for the decree-holder, while contesting application C.M.No,27-B of 2008, submitted that the applicant based his whole case on the sale of half of the portion-A of the property by Khalid Aziz Malik to Hassan Khalid Malik the applicant. Learned counsel argued that the sale-deed, annexed with this application, clearly reflects that the sale was not between Malik Khalid Aziz, vendor and Hassan Khalid Malik as vendee. The vendee was Mrs. Najma Khalid Malik.
The application is mis-conceived, contrary to the facts and is not liable to proceed on this score alone. Learned counsel contended further that instant proceedings are execution of the decree dated 18-5-2005 and the executing Court has to proceed according to the terms of the decree. The Honourable Court cannot go behind the decree and re-determine the issues which have already been settled in the decree.
6. Learned counsel for the decree-holder, in response to C.Ms. Nos.24 and 25 of 2008, submitted that portion-A of the property belonged to Mrs. Najma Khalid Malik, -who was a defendant. The applicants, being legal heirs, were impleaded as a party and learned Court decreed the suit against applicants after examining all the aspects of the controversy. The judgment and the decree have not been set aside. The applicants are legally bound to pay decretal amount. They are jointly and severally liable for the realization of decretal amount.
7. So far as C.M. No,29-B of 2008 is concerned, learned counsel for the decree-holder contended that the applicant has failed to prove through cogent evidence the existence or otherwise of a valid gift. He went on to argue that a gift can either be oral or in writing. If it is reduced into writing, its registration is compulsory, under section 17 of the Registration Act, 1908. He has submitted that plain reading of the document reflects that donor was making the gift in present and it was not an acknowledgement of gift already made orally. The words used in this deed are which reflect that it is the intention of the donor, made through this document and not acknowledgment of the gift.
Learned counsel further submitted that the document is not attested by the two witnesses, does not fulfill the requirement of section 17 of the Registration Act, and read with Articles 17 and 79 of Qanun-e-Shahadat Order, 1984. He has further submitted that three important essentials of a valid gift are; offer by the donor, acceptance by the donee and delivery of the possession. Element of delivery of possession is lacking, as such, the gift is not complete. The arguments of the petitioner run counter to the documents appended with this application. It is asserted in the application that the gift was made earlier and it was subsequently acknowledged through deed of gift, while the documents do not transpire that it is an acknowledgment of the gift already made, therefore, there is no gift in the eyes of law. He ended his arguments with the contention that the documents are ante-dated, fabricated and false to defeat the rights of the decree-holder in the attached property.
8. Heard learned counsel for the parties and record perused.
9. The applicant (C.M. No,29-B of 2008) claims portion-B, on the basis of gift. The gift as per assertions of the application was oral. The document annexed, with the application (Annexure-B) transpires that late Anwar Aziz Malik gifted his house to the applicant on 30-6-1980. The gift deed is on plain paper and its perusal reflects that:--
(i) It has not been signed by any witness.
(ii) There are numerous cuttings.
(iii) The executant has not signed it, at the top of his name, which is normal course. The signature of the executant appears at the bottom of the document, beneath his name.
(iv) The date 31-6-1980, has been changed to 30-6-1980. Figure "30" is overwritten and probably for the reason the month of June comprises of 30 days and applicant realized his fault subsequently.
(v) A sentence {{URDU TEXT}} has been added between the lines.
(vi) It is a plain paper without any adhesive stamps fixed on it.
(vii) It negates the assertions of application where the applicant asserted that gift was made orally, prior to the execution of the document. The documents contradict the assertions of application and donor expresses his intention of making gift through this document.
(viii)The document speaks of the gift of whole House (10-H. Gulberg III Lahore) and not portion thereof. While portion A was transferred through registered sale-deed prior to the, execution of the agreement and other portions were transferred through a compromise decree dated 4-12-1978.
(ix) The document suffers from the defect of uncertainty, the specific portion which was gifted had not been mentioned.
(x) The signatures of executant on this document, do not resemble and tally with his signatures on plaint (Annexure A/1) and compromise deed (Annexure A/2 annexed herewith.
(xi) No witness had signed it and the document do not meet the requirement of law.
' The objection application has been moved with sole object to defeat the decree, deprive decree- holder to realize decretal amount and to prolong litigation. An oral gift like any other oral agreement is easy to allege but difficult to prove. The applicant in this application has failed to give necessary details as to place, date and time of gift. The application is silent as to the names of the witnesses in whose presence the oral gift was declared by the donor in favour of the applicant. The gift deed dated 30-6-1980 is inadmissible document, it has not been signed and attested by two witnesses.
It's perusal through naked eye, reflects that it is fake and fabricated document.
' The above discussion brings me to conclude that viewing the case of the applicant from any angle, it has no merit. This application has no fate except for dismissal and the same is accordingly dismissed.
10. Now I will take up objection petition (C.M. No,24-B of 2004), which have been filed on behalf of judgment-debtors Nos.5, 6 and 7, who are daughters of Najma Khalid Malik (Late). They claim their right in the Portion-A of the property in question, being legal heirs of the deceased.
' The deceased predecessor-in-interest of the applicant was the guarantor and the decree, subject-matter of this execution application was passed against the applicants being legal heirs of the grantor. The applicants contested the suit unsuccessfully. The property being inherited from the deceased guarantor can be sold through auction for realization of the decretal amount. The decree against all the judgment-debtors is joint and several and this Court being the Executing Court, cannot go behind the decree.
' So far as the transfer and management of Malik Food Industries Limited to Dr. Malik Muhammad Arshad Khan, through letter dated 24-7-1995, is concerned, the applicants have concealed subsequent development. The management could not be transferred to Malik M. Arshad Khan as the Bank and the buyer failed to adhere to the terms and conditions of the sale/transfer of the project and dispute arose which gave cause to the litigation between the buyer and the Bank. The project was sold in auction, in the winding up proceedings (C.O.No,9 of 1991) which fact the applicants have also narrated. In the winding up proceedings, Official Liquidator admitted total claim of the respondent to the tune of Rs.340,307,000 on the basis of judgment and decree passed in COS No,66 of 1994 and COS No,4 of 1994. The total claim against the admitted claim which the Official Liquidator verified was to the tune of Rs.23,240,887, which fact is evident from order dated 6-3-2007 passed in C.O.No,9 of 1991. The official liquidator verified the claims of CIRC and BEL only.
The claim of Official Liquidator does not find any mention in the above order.
' The decree-holder has appended with the execution application a statement of account. It reflects various entries. The amount of Rs.2,72,12,722 is till outstanding against the judgment- debtors towards the decretal amount. The application has been filed on behalf of judgment- debtors Nos.5, 6 and 7, but none has signed this application. It is however supported by an affidavit of one of them i,e, Samira Maroof Khan. The application is without any merit and is accordingly dismissed.
11. This application (C.M. No,27-B of 2008) has been filed by judgment-debtor (No,4 Hassan Khalid Malik), who claims that ownership of 3 Kanal and 7 Marlas, comprising of Portion-A of the attached property, on the basis of sale-deed dated 16-6-1979, from Khalid Aziz Malik (judgment-debtor No,1).
The photocopy of the sale-deed, .Which the applicant has appended with the application, reflects that name of the vendee was corrected and Hassan Khalid Malik was replaced with Najma Khalid Malik. The cutting on the name of vendee is signed by the vendor. Backside of page 1, contains statement recorded by the Local Commissioner. It reflects that:- {{URDU TEXT}}
12. The above correction of the name of vendee is again at the end of sale-deed. Learned counsel for the applicant, when confronted that vendee in this sale-deed is not the applicant but his mother, he conceded. He then placed on record another photocopy of a sale-deed. In this deed the name of the vendee through cutting is replaced. Najma Khalid has been changed to Hassan Khalid through Najma Khalid w/o Khalid Aziz Malik.. The sale-deed shows that agreement was in favour of Najma Khalid and this fact can be ascertained from page 2 wherein it is incorporated:-- {{URDU TEXT}}
13. The above defect in the sale deeds cannot be ignored. The documents, however, explain that house in Portion-A of the property was sold to Najma Khalid Malik and lawn adjacent to it was sold to the applicant but the mistake was never rectified.
The applicant who is one among the judgment-debtors was held liable for the payment of decretal amount. His liability under the decree is joint and several and as such he cannot escape his liability. His property is liable to be attached and sold for the execution of the decree, unless he proves that he has not inherited from his deceased mother, any assets. Nothing in this regard has been asserted in the application. The applicant being judgment-debtor has inherited property and other asset from the deceased guarantor, is liable severally and jointly with judgment-debtors to realize the decretal amount. The application is without any merit.
14. For the foregoing, these applications having no merit are dismissed.